A judge and a lead prosecutor in a first-degree murder case exchanged 949 cell phone calls and 471 text messages during a five-month period — and 44 of those phone and text messages were the day before, the day of, and the day after the judge imposed the death sentence.

Because then-Judge Ana Gardiner, of the 17th Judicial Circuit, intentionally chose not to disclose to the defense her “significant emotional relationship” with the lead prosecutor and did not disclose the “true nature of the relationship” to the Judicial Qualifications Commission during its investigation in 2008, she deserves to be disbarred, said the Florida Supreme Court in a per curiam opinion on June 5 in Case No. SC11-2311.

“Considering Gardiner’s dishonest conduct and the harm that her actions have caused to the administration of justice in a capital first-degree murder case, we conclude that disbarment is the appropriate sanction,” the justices agreed.

(In a separate disciplinary case, the lead prosecutor was suspended from practicing law for two years.)

On March 23, 2007, several days before the jury returned its verdict in State v. Loureiro, Gardiner was eating dinner at a restaurant when by chance she ran into the prosecutor. They decided to continue the evening at a bar. On the way to the bar, a law student riding in the car with the prosecutor raised the problem of a “possible appearance of impropriety that might arise from the judge and the lead prosecutor in a pending murder trial socializing while the case was ongoing,” according to the opinion.

While the prosecutor was upset by the conversation and left the bar shortly after arriving, the referee found that Judge Gardiner wanted to learn what had upset him and spoke to him several times over the weekend on the phone. When the trial resumed on the following Monday, Judge Gardiner did not disclose her social interaction with the lead prosecutor. After the trial, the judge’s relationship with the prosecutor “intensified.”

Gardiner’s testimony during the JQC proceedings, the referee found, was “a deliberate act of dishonesty and deceitfulness.” Gardiner received an admonishment based on the appearance of impropriety.

During Loureiro’s direct appeal, the Supreme Court relinquished jurisdiction to the circuit court and the Broward County State Attorney hired a special prosecutor to investigate. At an April 2009 deposition, Gardiner “acknowledged for the first time her ongoing emotional relationship” with the prosecutor.

The Broward County State Attorney agreed to a new trial, and at the second trial Loureiro was convicted and sentenced to life in prison. In April 2010, Gardiner resigned as a circuit judge.

The referee recommended that Gardiner be found guilty of violating three Bar rules: Rule 3-4.3 (the commission by a lawyer of any act that is unlawful or contrary to honesty and justice may constitute a cause for discipline); Rule 4-8.49(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation); and Rule 4-8.4(d) (a lawyer shall not engage in conduct in connection with the practice of law that is prejudicial to the administration of justice).

The referee found two aggravating factors (multiple offenses and substantial experience in the practice of law), and considered seven mitigating factors (no prior disciplinary record, displayed significant personal or emotional problems, testified freely and openly and cooperated, demonstrated good character and has a good reputation, at the time suffered from clinical depression, other sanctions had been imposed, and she demonstrated remorse).

The referee recommended a one-year suspension, but The Florida Bar disagreed and urged the Supreme Court to disbar Gardiner.

“Significantly, we note that Loureiro was a capital first-degree murder case, in which Gardiner could and did impose the ultimate sentence of death,” the Supreme Court said, in agreeing with the Bar.

“The referee found that Gardiner’s failure to disclose her emotional relationship with [the lead prosecutor] tainted the entire legal process. In all cases, due process requires that proceedings must both be and appear to be fundamentally fair. Personal conduct of a judge suggesting a bias in favor of the prosecutor is an extraordinarily serious matter in a death penalty proceeding. . . . The special prosecutor concluded that Gardiner’s misconduct tainted the proceeding to such an extent that Gardiner’s decision to impose the death penalty could not stand.

“Given these facts, we believe that Gardiner’s misconduct warrants a severe sanction. . . . Considering Gardiner’s dishonest conduct during the trial and in her subsequent testimony before the JQC and the impact of her actions on the administration of justice in a death penalty case, we conclude that disbarment is the appropriate sanction.”

While the justices described testimony about Gardiner’s good character and reputation “overwhelming,” they said: “Nonetheless, we conclude that these mitigating factors do not outweigh Gardiner’s serious ethical misconduct.”